Ambartsoumian v. Ashcroft, 03-1961.

• Decision Date: 01 November 2004
• Docket Number: No. 03-1961.,03-1961.
• Citation: 388 F.3d 85
• Parties: Garegin AMBARTSOUMIAN; Nadia Ambartsoumian; Karina Ambartsoumian; Rimma Ambartsoumian, Petitioners v. John ASHCROFT, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

388 F.3d 85

Garegin AMBARTSOUMIAN; Nadia Ambartsoumian; Karina Ambartsoumian; Rimma Ambartsoumian, Petitioners v. John ASHCROFT, Attorney General of the United States of America, Respondent.

No. 03-1961.

United States Court of Appeals, Third Circuit.

Argued October 5, 2004.

November 1, 2004.

Petition for review from the Board of Immigration Appeals.

Steven P. Barsamian (Argued), Philadelphia, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Anthony W. Norwood, Senior Litigation Counsel, Jennifer A. Levings (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, for Respondent.

Before SLOVITER, BECKER and STAPLETON, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This is a petition by Garegin Ambartsoumian ("Garegin"), his wife Nadia Ambartsoumian ("Nadia"), and their two children, for review of an order of the Board of Immigration Appeals (BIA) denying them asylum, withholding of removal, and protection under the Convention Against Torture. It is, in a way, a tale of two countries-the Ukraine and Georgia. Garegin is a Georgian citizen of Armenian and Ossetian parentage. Nadia is a Ukrainian citizen and a Baptist. The Ambartsoumians married in the Ukraine in 1989, and spent much of the next three years shuttling back and forth between their two native countries. They arrived in the United States in 1996, after a sojourn in Canada, and applied for asylum, claiming that they had faced persecution in both Ukraine and Georgia and would be persecuted in either country if obliged to return.

The case for persecution in the Ukraine is extremely weak. It is largely predicated on events that took place, and on policies and attitudes that existed, before the breakup of the Soviet Union and the establishment of an independent Ukraine. Except for an alleged beating in 1991 and a putative attempt to kidnap the Ambartsoumians' children in 1992, the record includes nothing more than sporadic veiled threats and a lack of economic opportunity in the Ukraine. The Ambartsoumians did adduce evidence that the climate in the Ukraine is inhospitable to Armenians. However, the record, including State Department reports on country conditions, reflects a total change in the governmental policies of the Ukraine since 1991, and nothing in the record suggests that the Ambartsoumians would now be persecuted in the Ukraine for either their ethnicity or their religious beliefs.

The case for persecution in Georgia seems more complicated in light of the fluid political situation in the North Caucasus and the continuing tensions in Abkhazia and South Ossetia.¹ The record contains evidence that in 1989 the Ambartsoumians received death threats from Georgian nationalists; that in 1990 both Nadia and Garegin were badly beaten; and that in 1992, upon his return from Ukraine, an attempt was made to conscript Garegin into the Georgian army. However, the Ambartsoumians' principal contention before us, supported by an expert witness-a professor specializing in the history and politics of the region-is that ethnic hostility toward Armenians and religious hostility toward non-Orthodox Christians would now render the Ambartsoumians subject to persecution in Georgia.

The latest State Department Country Report in the record, for 1998, counters the expert's opinion. We therefore asked the parties to comment on the adequacy of the administrative record, given the current situation in Georgia, in light of our opinions in Berishaj v. Ashcroft, 378 F.3d 314, 328-31 (3d Cir.2004), and Gambashidze v. Ashcroft, 381 F.3d 187, 193-94 (3d Cir.2004). In these cases, we expressed our concerns about being forced to use stale administrative records to decide petitions seeking to avoid deportation to countries of origin where asylum applicants might be persecuted.

In response to our request for comment, the Attorney General reported that the Department of Justice has responded to Berishaj by implementing a new procedure pursuant to which the Office of Immigration Litigation (OIL), in consultation with its client agencies, now screens out and seeks to remand cases where records are out of date and not appropriate for judicial review. All OIL attorneys have been instructed to consider whether the record in each case assigned to them is so out of date as to justify a remand. If the record is stale, the OIL attorney is to bring the case to the attention of the Director of OIL, who may seek a remand as a matter of discretion. The factors that OIL will use in assessing old records include "(1) whether there have been pertinent, intervening events in the country of removal; and (2) whether the issues on review are `time sensitive' in that changes in conditions over time may affect the resolution of the issues." The full text of the procedures are set forth in the Appendix to this opinion. We commend the Attorney General and OIL on this reform.

Notwithstanding the new procedures, the OIL concluded that the record in this case does not warrant a remand to the BIA. Concomitantly, the Ambartsoumians' counsel, at oral argument, agreed that the record before the agency was sufficient for this Court to consider, although he argued that it compelled us to reject the IJ's findings. Since both parties seem to agree that the staleness of the record does not present any difficulties here, we reach the merits of the persecution claims.

The government submits that the record does not compel the conclusion that there was past persecution, or that the Ambartsoumians will face persecution if returned to Georgia. For the reasons that follow, we agree. As will appear, important to this conclusion are the facts that: (1) the Ambartsoumians' expert, Dr. Ronald Suny, was too general and broad-brushed to overcome the 1998 Country Report's account of greatly improved conditions for Armenians in Georgia; (2) Suny acknowledged that the situation in Georgia had significantly improved and that the government was not a likely persecutor; and (3) the real problem was only that Georgia was a "weak state" where Armenians are not popular.

For these reasons, the Petition for Review will be denied.

I. The Legal Framework

The Attorney General may, in his discretion, grant asylum to any alien if he determines that the alien is a refugee. 8 U.S.C. § 1158(b)(1). To demonstrate that he or she is a refugee, an asylum applicant must establish that he or she is unable or unwilling to return to his or her native country because of "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1). The burden of proving persecution is on the asylum applicant. 8 C.F.R. § 1208.13(a).

The Ambartsoumians' application for withholding of removal is based upon 8 U.S.C. § 1231(b)(3)(A), which forbids removal 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." To qualify for withholding of removal, the applicant must show "that it is more likely than not that he will face persecution if he is deported." Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir.2001) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). This standard is stricter than the "well-founded fear" standard for asylum. Because we find that the Ambartsoumians are not eligible for asylum, we need not consider their eligibility for withholding of removal under this stricter standard. See Shardar v. Ashcroft, 382 F.3d 318, 324 (3d Cir.2004).

The standard for CAT protection is different from that for asylum or withholding of removal; it requires proof that the applicant is "more likely than not" to be tortured, 8 C.F.R. § 1208.16(c)(2), but does not require any showing that the torture is on account of any protected ground. See Lukwago v. Ashcroft, 329 F.3d 157, 183 (3d Cir.2003).

The Immigration Judge denied the Ambartsoumians' requests for relief, but granted them voluntary departure. The Board of Immigration Appeals affirmed without opinion, pursuant to 8 C.F.R. § 1003.1(e)(4).² Therefore, we review only the decision of the Immigration Judge. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). Our review is limited by the "substantial evidence" standard, which states that "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). The determination that an asylum applicant faced past persecution, or has a well-founded fear of future persecution, is a factual conclusion subject to this deferential review. Gao, 299 F.3d at 272. We therefore must uphold the IJ's findings if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

The Immigration Judge (IJ) heard testimony from Garegin and Nadia Ambartsoumian, and from their expert witness, Dr. Suny. He also reviewed the U.S. Department of State Country Reports for Georgia and Ukraine for 1998, and the State Department Asylum Profiles for those countries. He relied heavily on the "objective evidence" of these reports. This reliance was justifiable, as we have held that State Department reports may constitute "substantial evidence" for the purposes of reviewing immigration decisions. Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003); cf. Lal v. INS, 255 F.3d 998, 1023 (9th Cir.2001) (describing State Department country reports as the "most appropriate" and "perhaps best resource" on country conditions).

Based on the record, the IJ determined that the Ambartsoumians had failed to...