Ivanishvili v. U.S. Dept. of Justice

• Decision Date: 05 January 2006
• Docket Number: Docket No. 03-4166.
• Parties: Giuli IVANISHVILI, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE & Attorney General Gonzales<SMALL><SUP>*</SUP></SMALL>, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

433 F.3d 332

Giuli IVANISHVILI, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE & Attorney General Gonzales^*, Respondent.

Docket No. 03-4166.

United States Court of Appeals, Second Circuit.

Argued May 16, 2005.

Decided January 5, 2006.

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Bruno Joseph Bembi, Hempstead, New York, for Petitioner.

Mark E. Salter, Assistant United States Attorney, Sioux Falls, South Dakota (Michelle G. Tapken, Acting United States Attorney, District of South Dakota, Sioux Falls, South Dakota, of counsel), for Respondent.

Before: CARDAMONE and KATZMANN, Circuit Judges, and KRAVITZ^**, District Judge.

CARDAMONE, Circuit Judge.

Giuli Ivanishvili (Ivanishvili or petitioner) petitions for review of a decision of the Board of Immigration Appeals (BIA or Board) that summarily affirmed an immigration judge's (IJ's) decision rejecting her application for asylum as untimely and denying her application for statutory withholding of removal and her request for withholding under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, G.A. Res. 39/46, U.N. Doc. A/39/51 (1984) (CAT or Convention). She alleges she was persecuted in her country of origin because she is a member of an ethnic and religious minority group and asserts that, if returned, she will face further persecution and possibly torture. We believe the facts of petitioner's case merit more careful attention by the immigration court than has been afforded thus far, and we therefore remand for reconsideration.

BACKGROUND

Petitioner is a 54-year-old woman from the Republic of Georgia. Although her mother is Georgian, petitioner's father was originally from South Ossetia, a region along the border of Georgia and Russia, and petitioner considers herself ethnically Ossetian. Following Georgia's independence from the Soviet Union in 1991, South Ossetia attempted to secede from Georgia, which led to a civil war and the eventual occupation of South Ossetia by a regional peacekeeping force in 1992. As a result of the danger to Ossetians in Georgia during this period, petitioner changed her name to Ivanishvili (her mother's maiden name) from Gagloshvili (her father's name) to avoid identification as an Ossetian. Petitioner became a Jehovah's Witness in 1994.

Ivanishvili entered the United States on December 3, 1996 on a valid non-immigrant visa that permitted her to remain lawfully in the United States until June 2, 1997. She overstayed this visa. In January 1998, she allegedly paid $2,000 to an individual named Alexey Alabushev to file an application for asylum on her behalf. According to Ivanishvili, Alabushev did not file the application and disappeared without providing her with any receipts or correspondence. In September 1998, Ivanishvili allegedly paid another $2,000 to one Tony Lan to file an asylum application on her behalf. Lan provided petitioner with unsigned receipts, but filed a fraudulent application for a student visa instead of an asylum application. Ivanishvili obtained reputable legal counsel in 2000 and filed an application for asylum and withholding of removal on July 18, 2000.

In her application, Ivanishvili asserted that she suffered "severe mistreatment and physical abuse [in Georgia] for being a Jehovah's Witness and Ossetian," and stated that she feared "future harm and torture in the event of my return to Georgia." Specifically, petitioner contended that, due to her ethnicity, she suffered "humiliation, harassment and even beatings" and was denied educational and employment opportunities to which she was entitled. During the civil war in Ossetia, petitioner alleged her family was subjected to violence and intimidation at the hands of Georgian nationalists and soldiers, and that Georgian nationalists vandalized her home by throwing rocks through her windows. She also stated that as late as August 1996, shortly before leaving Georgia for the United States, her neighbors assaulted her and threatened further harm if she did not leave Georgia and move to Ossetia.

Petitioner also alleged severe abuse and mistreatment because of her religion. She reported three separate occasions in 1995 and 1996 when military or police officials accosted her and her fellow worshipers during religious meetings. The officers reportedly beat petitioner, called the worshipers "[d]amn [s]ectarians," and threatened to kill them. Petitioner also alleged that unknown parties vandalized her place of worship in 1996, painting "Death to Sectarians!" on the wall.

The Immigration and Naturalization Service (INS)¹ initiated removal proceedings against petitioner by a Notice to Appear served on August 28, 2000. At her hearing before the IJ, Ivanishvili conceded removability but sought asylum, withholding of removal, and relief under CAT for the reasons stated in her application. In support, Ivanishvili submitted numerous documents to the IJ, including articles from news sources and non-governmental organizations detailing the adverse treatment to which Ossetians and religious minorities have been subjected in Georgia and the U.S. State Department's 2000 Country Report (Country Report) on human rights practices in Georgia.

Ivanishvili's testimony regarding religious persecution was consistent with the statements in her asylum application. Petitioner did not testify in detail about the reported incidents of ethnic persecution, but did relate an incident from September 1992 when armed Georgian soldiers allegedly broke into her apartment, beat her with clubs, and threatened to kill her if she did not leave Georgia and move to Ossetia. As a result of this incident, Ivanishvili testified that she moved in with her mother and sought out the Jehovah's Witnesses for spiritual guidance.

The IJ issued an oral decision on December 13, 2001 denying petitioner's application for asylum and withholding of removal and her request for relief under CAT and granting her voluntary departure from the United States. The IJ ruled petitioner's asylum application was not timely and that she could not prove extraordinary circumstances justifying her failure to timely file. The IJ further concluded that petitioner's application for statutory withholding of removal was without merit. He questioned Ivanishvili's testimony because it was "relatively general," and because she failed to include the most severe incident of harm based on her ethnicity — the September 1992 attack by Georgian soldiers — in her asylum application. While conceding that the documentary evidence submitted by petitioner, including the State Department's Country Report, demonstrated that "severe problems" exist for Ossetians in Georgia, the IJ nonetheless concluded that "the harassment that has been indicated would not constitute persecution within the meaning of the Immigration and Nationality Act." Finally, the IJ found no evidence that Ivanishvili faced a likelihood of torture if returned to Georgia and denied her CAT claim.

Petitioner appealed to the BIA on January 4, 2002. In support of her appeal, Ivanishvili submitted additional affidavits and news reports substantiating her accounts of abuse, discrimination, and violence against Ossetians and Jehovah's Witnesses in Georgia. She did not address the IJ's adverse decision on her CAT claim. The Board affirmed the IJ's decision without opinion on January 8, 2003, and Ivanishvili petitioned this Court for review.

DISCUSSION

I Standard of Review

Ordinarily we review BIA decisions, but when the BIA summarily adopts an IJ's decision as the final agency determination, we review the IJ's decision directly. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). An IJ's factual determinations are upheld if supported by substantial evidence, see, e.g., Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), a standard that is "slightly stricter" than the clear-error review we apply to the factual determinations of district courts, but nonetheless one that allows only very narrow grounds for reversal. Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003); see Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999) (describing the scope of such review as "exceedingly narrow"). Indeed, we will overturn the IJ's or BIA's factual determinations only if a reasonable factfinder would be compelled to conclude to the contrary. See Zhang, 386 F.3d at 73.

Despite these limitations, we retain substantial authority to vacate BIA or IJ decisions and remand for reconsideration or rehearing if the immigration court has failed to apply the law correctly or if its findings are not supported by record evidence. See Qiu, 329 F.3d at 149. Moreover, it is not our task to search the record for reasons why a decision of the IJ or BIA should be affirmed; rather, the immigration court must adequately link its decision to the record evidence in a reasoned opinion that properly applies the law, id., and "if the IJ's reasoning proves inadequate for denying a petitioner's claim, we will not hesitate to reverse," Secaida-Rosales, 331 F.3d at 305.

Ivanishvili asserts on appeal that the IJ erred in rejecting her asylum application as untimely and in denying her requests for statutory withholding of removal and withholding under the CAT. She also contends the IJ erred by not considering the documentary evidence she submitted at her hearing and that the BIA abused its discretion by failing to consider the additional documentary evidence petitioner submitted on appeal.

In our view, the IJ's denial of Ivanishvili's application for withholding of removal is based on reasoning that, in light of the record, is insufficient for us to permit meaningful review of the decision. We therefore vacate the BIA's decision insofar as it summarily affirmed the IJ's denial of petitioner's application for withholding and remand to the BIA with instructions to vacate that portion of the decision and remand it to the IJ for further proceedings...