Gambashidze v. Ashcroft
| Decision Date | 26 August 2004 |
| Docket Number | No. 03-2218.,03-2218. |
| Citation | 381 F.3d 187 |
| Parties | Besik GAMBASHIDZE; Anna Bzvaneli; Anna Gambashidze; Nikoloz Gambashidze; Zurab Gambashidze; Beka Gambashidze, Petitioners v. John ASHCROFT, Attorney General of the United States. |
| Court | U.S. Court of Appeals — Third Circuit |
Jon Landau (Argued), Erica S. Gonzalez, Baumann, DeSeve & Landau, Philadelphia, for Petitioners.
Peter Keisler, Assistant Attorney General, Civil Division, Emily A. Radford, Assistant Director, Linda S. Wernery, Allen W. Hausman, Senior Litigation Counsel, John D. Williams, United States Department of Justice, Office of Immigration Litigation, Washington, Jonathan Cohn (Argued), United States Department of Justice, Civil Division, Washington, for Respondent.
Before SLOVITER, FUENTES and BECKER, Circuit Judges.
Besik Gambashidze, a native of the Republic of Georgia, petitions for review of a decision of the Board of Immigration Appeals (BIA) denying him withholding of removal. The applications of his wife, Anna, and their four children are dependent on his application. This case requires us to address for the first time a recently codified regulation, 8 C.F.R. § 208.16(b)(1)(i)(B), which controls how the possibility of relocation within the proposed country of removal affects the claim of an alien who seeks withholding of removal based on past persecution.
Gambashidze was politically active in Georgia in the 1990s following its independence from the Soviet Union in 1991, ultimately joining a group known as the Round Table, which opposed Georgian President Eduard Shevardnadze. For this activity, Gambashidze was allegedly persecuted by the police, both in Tbilisi (the capital of Georgia) and in his hometown of Rustavi, a city thirty-five kilometers southeast of Tbilisi. The persecution lasted from early 1996 to mid-1997, at which time Gambashidze and his family moved to another home in Tianeti, a city fifty kilometers north of Tbilisi. Details of his stay in Tianeti are scant, but he did not encounter the police in his eight months there.
In early 1998, Gambashidze came to the United States on a tourist visa, and the rest of his family followed over the next eighteen months. Gambashidze applied for various forms of relief to avoid being removed to Georgia, but was unsuccessful on all claims before the immigration judge (IJ) and on appeal before the BIA. On this petition for review he challenges only the BIA's disposition of his claim for withholding of removal. The BIA assumed, arguendo, that Gambashidze had demonstrated past persecution, and was therefore entitled to a presumption of a likelihood of future persecution. See 8 C.F.R. § 208.16(b)(1)(i). The Board nonetheless held him ineligible for withholding of removal because he had "not met his burden of proof in demonstrating that he has a well founded fear of persecution upon return to Georgia because he and his family were able to internally relocate and live unmolested for several months prior to entering the United States."
The BIA invoked 8 C.F.R. § 208.16(b)(1)(i)(B) to reach this result. The regulation envisions a two-part inquiry: whether relocation would be a successful means of escaping persecution, and whether relocation would be reasonable. While there is ample evidence that it would be reasonable for Gambashidze to relocate to Tianeti, the record discloses next to nothing about the true viability of Tianeti as persecution-free zone for Gambashidze. Since the burden of proof in an internal-relocation rebuttal is on the government, 8 C.F.R. § 208.16(b)(1)(ii), the slim record on this critical point cannot support the BIA's decision. Because there is not substantial evidence in the administrative record for the BIA's conclusion regarding internal relocation, we will grant the petition for review.
The administrative record consists principally of Gambashidze's live testimony before the IJ, very brief live testimony by his wife, the State Department's 1999 Country Report on Georgia (the "Country Report"), and the affidavits and statements submitted by Gambashidze in connection with his application. Since neither the IJ nor the BIA rested their decisions on information in the Country Report, we will not discuss it. As for Gambashidze's testimony and written submissions, the IJ found him not credible, but the BIA did not rest its decision on credibility grounds; therefore, for ease of exposition we will present Gambashidze's testimony as truthful.
As we have already noted, Gambashidze was politically active as an opponent of Georgian President Eduard Shevardnadze. Gambashidze had been a supporter of Georgia's first post-Soviet president, Zviad Gamsakhurdia, who was removed after less than a year in office in the coup d'état that resulted in Shevardnadze's control of Georgia. Gambashidze remained loyal to pro-Gamsakhurdia factions, and opposed Shevardnadze; this political activity consisted mainly of his membership and participation in a group known as the Round Table. He participated in Round Table demonstrations and rallies and gave the group financial assistance.
Gambashidze's testimony and written submissions do not suggest that he was persecuted for his political activity from 1991 to 1995, but a series of encounters with police based on his Round Table activity began in 1996. In February 1996, he participated as a speaker at a rally in Tbilisi, representing his hometown of Rustavi. A large number of police broke up the demonstration, and Gambashidze was taken to police headquarters. There, he was beaten on his feet and stomach and released after five hours. Then, in July of 1996, Gambashidze was summoned to police headquarters in Rustavi, where he was warned to cease participating in demonstrations. He did not.
In September, four Rustavi policemen came directly to his house at night and took him away; he was beaten on his feet, and again told to stop participating in Round Table demonstrations. Gambashidze's wife corroborated his account of the police coming to the house, and the foot injury that Gambashidze sustained. In March of 1997, while on a visit to Tbilisi, Gambashidze was apprehended by a police patrol and brought to police headquarters. He was handcuffed to a pipe and beaten, and again warned to stop participating in political demonstrations. Two months later, in May 1997, police took him from his house in Rustavi to the Rustavi office of the Ministry of Internal Affairs, where a high-ranking official tried to force him to confess to participation in a recent attempt to assassinate President Shevardnadze. Gambashidze claimed he had no involvement and would not confess; he was severely beaten and the Internal Affairs official threatened him and his family.
At this point, in Gambashidze's words, he The family moved to a summer house owned by Gambashidze's wife in Tianeti. While Gambashidze lived there—from May 1997 until January 1998—he had no incidents with the police. He was able to make at least one trip to Tbilisi (to obtain a visa from the American embassy) without being stopped by the police. While none of Gambashidze's family had trouble with the police in Tianeti, after Gambashidze left for the United States in January 1998 police inquired of his mother as to his whereabouts. It is not entirely clear whether Gambashidze continued his political activity while in Tianeti. He did not specifically testify that he engaged in political demonstrations while he was living in Tianeti, but in response to a general question at the beginning of his testimony, "For how many years did you engage in those political demonstrations?" he answered, "I would say up to '98."
Gambashidze and his family came, two at a time, to the United States during 1998 and 1999. He applied in late 1999 for various forms of relief that would allow him and his family to remain in the United States.
The IJ rejected all of Gambashidze's claims on various and multiple grounds, most of which do not concern us here since Gambashidze has petitioned for review of only the denial of his claim for withholding of removal. The IJ denied him relief on that claim on two grounds: first, that he had not supported his claim with credible testimony, and second, that even taking his testimony as true, Gambashidze's accounts of his life in Georgia did not establish past persecution or any probability of future persecution. The BIA affirmed in a one-paragraph per curiam opinion, in which it advanced a different ground for denying the claim for withholding of removal: that Gambashidze could avoid any future persecution by relocating within Georgia. Specifically, the BIA stated:
[W]e find that the respondent failed to meet his burden of proof in demonstrating that he suffered past persecution or has a well founded fear of persecution upon return to Georgia. Specifically, the respondent has not met his burden of proof in demonstrating that he has a well founded fear of persecution upon return to Georgia because he and his family were able to internally relocate and live unmolested for several months prior to entering the United States.
We have jurisdiction under 8 U.S.C. § 1252 over this timely petition for review of this final determination of the BIA.
The BIA concluded that because Gambashidze and his family "were able to internally relocate and live unmolested for several months," they could therefore "avoid a future threat to ... life or freedom by relocating to another part of the proposed country of removal," 8 C.F.R. § 208.16(b)(1)(i)(B). We review such a finding of fact under 8 U.S.C. § 1252(b)(4)(B), which provides that "administrative findings of fact are conclusive unless any reasonable adjudicator...
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