Abulashvili v. Attorney Gen. of the United States

• Decision Date: 15 November 2011
• Docket Number: 09–2560.,Nos. 08–2756,s. 08–2756
• Citation: 663 F.3d 197
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Vasil ABULASHVILI & Teona Klibadze, Petitioners v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

663 F.3d 197

Vasil ABULASHVILI & Teona Klibadze, Petitioners

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

Nos. 08–2756

09–2560.

United States Court of Appeals, Third Circuit.

Argued Feb. 28, 2011.Opinion Filed: Nov. 15, 2011.

Jon Landau (argued), Baumann, Landau & Simon, Philadelphia, PA, Michael P. DiRaimondo, DiRaimondo & Masi LLP, Melville, NY, for Petitioners.

Lindsay B. Glauner (argued), Thomas W. Hussey, Ari Nazarov, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before: McKEE, Chief Judge, AMBRO, Circuit Judge, and CHAGARES, Circuit Judge.

OPINION

McKEE, Chief Judge.

Petitioners Vasil Abulashvili and Teona Klibadze seek review of an order of the Board of Immigration Appeals dismissing their application for withholding of removal and protection under the Convention Against Torture (“CAT”) and an order of the BIA denying their motion to reopen. For the reasons explained below, we hold that the BIA erred in dismissing the Petitioners' application for asylum because the agency's adverse credibility determination is not supported by substantial evidence. We also hold that the BIA abused its discretion in denying the motion to reopen. Finally, we hold that Petitioners' due process rights were violated when Immigration Judge Annie S. Garcy completely took over the cross-examination for government's counsel, and thereby ceased functioning as a neutral arbiter. We will therefore grant the petition for review, vacate the BIA's orders, and remand the case to the BIA for further proceedings.

I. Factual Background and Procedural History

Vasil Abulashvili and his wife, Teona Klibadze, are citizens of Georgia, a former U.S.S.R. republic. They entered the United States on visitor visas in 1999 and remained longer than authorized. On December 20, 2004, Abulashvili filed an affirmative application for asylum, withholding of removal, and protection under the CAT. Klibadze was included in the application as a derivative beneficiary of Abulashvili's asylum claim.¹ Abulashvili was thereafter placed in removal proceedings, where he renewed and updated his application for asylum.

A. Asylum Application

In his asylum application, Abulashvili claimed that he had been persecuted in Georgia on account of his membership in the opposition Labor Party of Georgia (“LPG”). He explained that his troubles began in September of 1998, when the passenger minibus he was driving was flagged down by some armed men at the side of the road. He asserted that one of the men said that his car had broken down and asked that he and his passenger be taken to the home of Koba Buchukuri, the head of the Dusheti district. Abulashvili believed that the passenger of the car was a foreigner, and that the driver was his interpreter. Abulashvili claimed that he had no choice but to comply because the interpreter appeared visibly afraid of the foreigner and told Abulashvili that the foreigner was a “real crook.” (A.R.347). Both individuals got into Abulashvili's minibus.

Abulashvili stated that he drove the foreigner and his interpreter to Buchukuri's mansion, where Abulashvili waited (as requested) until they returned from their meeting. He claimed that, as he waited, he photographed two individuals leaving the mansion. Abulashvili stated in his application that he had heard that Buchukuri and his wife Martina Moldinin, who was a member of the Georgian Parliament, were corrupt and he wanted to record who had been in the mansion.

Abulashvili stated that the foreigner and his interpreter returned from the meeting together with a man of Chechen descent.² As Abulashvili resumed driving, he heard the Chechen and the foreigner conversing in Arabic. Abulashvili stated that, at some point during the conversation, the foreigner pulled out a gun and began threatening the Chechen, causing the other passengers to panic. Abulashvili stopped the minibus at that point and several passengers jumped out. Abulashvili claimed that the foreigner then fired several shots at the Chechen, who fled the scene. One of the shots hit an 18–year–old female passenger.

According to the asylum application, Abulashvili drove the bleeding girl to a nearby hospital in Akhmeta. The interpreter accompanied Abulashvili to the hospital, and told Abulashvili that he would not testify about the shooting because Buchukuri and other members of the government were likely involved and he was worried about his safety. Abulashvili asserted that the girl never regained consciousness and later died in the hospital.

Abulashvili also claimed that when police subsequently questioned him about the shooting, he explained what had happened but did not reveal that he had taken photographs while waiting outside Buchukuri's home. Abulashvili was held in the police station overnight and, upon his release, the police chief warned him that he should forget everything that had happened.

According to the asylum application, Abulashvili gave the film containing the pictures he had taken outside of Buchukuri's home to the LPG Chairman, Shalva Natelashvili. Shortly afterward, an unknown individual called Abulashvili, questioned his visit to the LPG office, and urged him to mind his own business. The application also noted that the police stopped Abulashvili on October 6, 1998 while he was driving his minibus route and interrogated him about his visit to the LPG office. Abulashvili stated that during the ensuing detention, officers held him upside down, beat him, and threatened to kill him if he revealed what had happened during the September 1998 incident. He was released three days later.

Abulashvili claimed that he moved out of his apartment after his arrest because he feared that the police would continue to harass him. Abulashvili also asserted that in March of 1999 the Ministry of State Security came to his former apartment and arrested Guram Kraveishvili, Abulashvili's former roommate and fellow LPG member.³ Abulashvili alleged that members of the militia demanded that Kraveishvili tell them about Abulashvili's whereabouts, and that they beat Kraveishvili when he refused to reveal any information.

Three months later, on June 5, 1999, Abulashvili married Klibadze. On the day of their wedding, Abulashvili claimed that he spotted the interpreter who had been in his minibus during the September 1998 shooting. The asylum application also states that the interpreter and another man tracked Abulashvili down six weeks after the wedding. They threatened to inform the police about Abulashvili's whereabouts unless he gave them $10,000. According to the application, the men beat Abulashvili severely after he told them he could not pay that amount of money.

Abulashvili claimed that he later learned from a television news report that his former roommate (Kraveishvili) had been found dead. Upon hearing this news, Abulashvili decided to leave Georgia permanently because it was no longer safe for him or his wife to remain there. They left the country on August 20, 1999.

B. Proceedings Before Immigration Judge

On March 24, 2006, the Department of Homeland Security (“DHS”) initiated removal proceedings against Abulashvili for remaining in the United States without proper authorization. At a hearing before an Immigration Judge, Abulashvili conceded the charge of removability, but argued that he was entitled to relief based upon past persecution and fear of future persecution on account of his membership in the LPG opposition party, and his knowledge of government corruption as determined from the events in September 1998. Abulashvili testified that he had a close association with the LPG party. He also claimed that he had been involved in recruiting for the LPG and that the party had helped him establish his minibus service. He stated that his father had been an active LPG member and had experienced trouble with government officials. Abulashvili testified further that he believed that he would be harassed by those who had created problems for his father, including Koba Buchukuri, the once-head of the Dusheti district who was now the governor of Mtskheta–Tianeti. Abulashvili stated that he feared that he would lose his life as well as his family if he returned to Georgia.

On cross-examination, an attorney for the government who had not been present at the first merits hearing began questioning Abulashvili.⁴ That attorney was apparently not familiar with the record and woefully unprepared. He therefore confined his questioning to the number of times Abulashvili had been stopped by the police while living in the United States. A few minutes into the questioning, the IJ took over the cross-examination after determining that the government's attorney was not prepared.

C. The Immigration Judge's Decision

The IJ denied Abulashvili's asylum application on August 15, 2006. She determined that the application was untimely and that Abulashvili had failed to demonstrate that he qualified for an exception to the time limitation. The IJ further held that even if Abulashvili had timely filed the application, he was still ineligible for relief because his claims were not credible. The IJ defended her decision to take over Abulashvili's cross-examination by noting that the government's attorney had not been prepared. She explained that “[t]he Court is certain that in order to afford the respondent with due process and an opportunity to explain why his testimony in Court is different from his written application, someone needed to ask the respondent about it.” (A.R.89).

Abulashvili appealed to the BIA, challenging the IJ's adverse credibility finding and contending that the IJ's role in questioning him violated his due process right to a neutral arbiter. The BIA dismissed the appeal on May 30, 2008. Like the IJ, the BIA was troubled that Abulashvili's asylum application did not claim that the root of his problems in Georgia could have been due to his fathe...