Nozadze v. Sessions

• Decision Date: 02 July 2018
• Docket Number: No. 17-3587,17-3587
• Parties: PROKOFI NOZADZE, Petitioner, v. JEFFERSON B. SESSIONS, III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

PROKOFI NOZADZE, Petitioner, v. JEFFERSON B. SESSIONS, III, Attorney General, Respondent.

No. 17-3587

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

July 2, 2018

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 18a0327n.06

ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS

BEFORE: MOORE, CLAY, and KETHLEDGE, Circuit Judges.

CLAY, Circuit Judge. Petitioner Prokofi Nozadze seeks review of a decision by the Board of Immigration Appeals ("BIA") denying his application for asylum pursuant to 8 U.S.C. § 1158 and 8 C.F.R. § 1208.13(b)(1)(iii); withholding of removal, pursuant to § 241(b)(3) of the Immigration and Nationality Act; and withholding of removal under Article III of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 ("CAT"). For the following reasons, we DENY the petition for review.

BACKGROUND

These proceedings have been underway for nearly fifteen years. The factual background was set forth succinctly in the administrative proceedings below, as follows:

[Petitioner] was a minibus driver in Georgia. While driving his routes, he began to notice what he believed to be corrupt activities between Georgian soldiers and Chechen "bandits." He voiced his concerns to other members of his political party, the Citizens' Union of Georgia ("CUG"). When his concerns were ignored, [Petitioner] wrote a letter detailing what he had seen to the government's "Regional Security Chief." [Petitioner] was summoned to the security office on September 3, 2001. Upon arrival, he was told to "be quiet" about what he had witnessed during his bus routes, and that it was none of his business. [Petitioner], however, continued to insist that the government should prevent the acts of corruption between rebels and the military. [Petitioner] was subsequently taken to a cell and beaten. He testified that he was not fed and that he was so badly injured that he could not get off the floor of his cell. [Petitioner] was released three days later. . . .

Next, in February 2002, [Petitioner]'s life was threatened. He testified that one day, two Chechens and one Georgian soldier boarded his minibus after storing a small mysterious package in the vehicle's luggage compartment. A "monitoring group" consisting of five individuals stopped the bus soon thereafter. Before [Petitioner] had a chance to speak with the monitors, the Georgian soldier told [Petitioner] not to reveal that he and the Chechens were responsible for placing the small package in the luggage compartment. [Petitioner] felt that he "could not lie" to the monitors, and when asked, identified the soldier and his Chechen associates as the owners of the package. The five patrollers then arrested the two Chechens, and "ordered the Georgian military person to go with them." Before leaving, the Georgian soldier turned to [Petitioner] and threated to kill him.

Two months later, in April 2002, [Petitioner] was driving his minibus route when three soldiers and one officer in a Georgian military jeep stopped him. [Petitioner] was instructed to get off the bus. Upon exiting, he was dragged into the woods and beaten until he could not move. Two of the soldiers then set [Petitioner]'s minibus on fire. [Petitioner] postulated that the attack was meant to make good on the threat the Georgian soldier made in February, as [Petitioner] was still driving the same van with the same license plate and markings. Fortunately, [Petitioner] was found by a road patrol the next day and taken to the hospital, where he remained for three days. [Petitioner] reported the incident to the police at the hospital; he was told that an investigation would follow, but nothing came of his report.

[Petitioner] ultimately left the CUG in June 2002. He had attended a party meeting during which the president of Georgia spoke and indicated that some CUG members had been interfering with government work. [Petitioner] believed that this comment was directed at him. After hearing the president's speech, [Petitioner] scheduled a meeting with the head of the CUG. [Petitioner] expressed his "surprise[] and disappoint[ment]" that his own party members did not support him in his quest to fight corruption at the border. He then informed that head of the CUG that he was withdrawing his membership in the CUG. [Petitioner] was told that his leaving "would cause a lot of problems," and that it would be "interesting" if [Petitioner] were to leave the party. Nonetheless, [Petitioner] turned in his membership card and certificate, confirming that he was no longer a member.

The final incident occurred in August 2002. [Petitioner] was dropping off a patron at a railroad station in his new minibus when three CUG members approached him and forced him into a vehicle, threatening to shoot him for noncompliance. They drove him approximately twenty minutes away and beat him with batons. They called him names and said that he "can't leave the party that easy." After beating him, the CUG members forced him to call his wife and have her deliver the equivalent of $10,000 to the CUG headquarters. [Petitioner] was held until the members received confirmation that the money had been received. [Petitioner] was hospitalized for three days as a result of his injuries. [Petitioner] testified that he did not file a police report because, based on his past experience filing a report, he felt his complaint would be ignored.

(A.R. 261-63 (internal citations omitted).)

Following the above-described events, Petitioner and his wife came to the United States. On August 14, 2003, the government initiated removal proceedings. Petitioner conceded that he was unlawfully living in the United States, and he applied to remain in the country through various means, including asylum, withholding of removal, and the CAT. The government eventually held removal proceedings in May 2012 and issued a denial of Petitioner's application on all grounds later that year. Petitioner appealed to the BIA, which remanded for additional proceedings. Following these proceedings, however, the government again denied Petitioner's application, and it ordered Petitioner's removal to Georgia. Petitioner again appealed to the BIA, but this time the BIA dismissed his appeal in a written decision. Petitioner then filed this timely request for review.

DISCUSSION

A. Standard of Review

This Court reviews the decision of the BIA as the final agency determination under the substantial evidence standard where, as here, "the BIA issues its own opinion rather than summarily adopt[ing] the findings of the IJ." Bi Xia Qu v. Holder, 618 F.3d 602, 605 (6th Cir. 2010) (citing Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007)). "To the extent the BIA adopted the immigration judge's reasoning, however, this Court also reviews the immigration judge's decision." Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citing Patel v. Gonzales, 470 F.3d 216, 218 (6th Cir. 2006)). The substantial evidence standard requires that this Court uphold the BIA's decision unless it is "manifestly contrary to the law." Bi Xia Qu, 618 F.3d at 605 (quoting Castellano-Chacon v. INS, 341 F.3d 533, 552 (6th Cir. 2003)); see also Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008). This Court will uphold administrative findings of fact unless the Court finds that "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir. 2006). Meanwhile, "[t]his Court reviews legal conclusions of the BIA de novo but defers to the agency's reasonable interpretations of its own precedents." Bi Xia Qu, 618 F.3d at 606 (internal citations omitted).

B. Refugee Asylum

Petitioner first requests review of the BIA's denial of his application for refugee asylum. The Attorney General has discretion to grant asylum to an alien who qualifies as a refugee under the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1101, et seq. See Elias-Zacarias, 502 U.S. at 481; Bi Xia Qu, 618 F.3d at 606. As relevant to this case, the Act defines a refugee as an alien who is unable or unwilling to return to his or her home country because of "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular socialgroup, or political opinion." See 8 U.S.C. § 1101(a)(42)(A); Elias-Zacarias, 502 U.S. 478 at 481; Bi Xia Qu, 618 F.3d at 606. A petitioner is presumed to have a well-founded fear of future prosecution if the petitioner shows that he or she has suffered such persecution in the past. 8 C.F.R. § 208.13(b)(1); see Bi Xia Qu, 618 F.3d at 606. The government "may rebut this presumption by showing, by a preponderance of the evidence, that conditions in the country have changed so fundamentally that the applicant no longer has a well-founded fear of future persecution." § 208.13(b)(1); see Bi Xia Qu, 618 F.3d at 606 (citing Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005)). One example of a fundamental change is the ouster of the political regime responsible for the petitioner's prior political persecution. See Liti v. Gonzales, 411 F.3d 631, 639 (6th Cir. 2005) (citing cases), superseded by statute on other grounds as stated in Marikasi v. Lynch, 840 F.3d 281 (6th Cir. 2016).

Absent a presumption created by past persecution, or where the government rebuts such a presumption, the applicant has the burden of proof to establish that he or she has a well-founded fear of future persecution based on current circumstances. See 8 C.F.R. § 208.13(b) (allowing an applicant to qualify for asylum "either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution" (emphases added)); Liti, 411 F.3d at 639. This Court has previously described this burden as follows:

An alien may establish a well-founded fear of future persecution by demonstrating: (1) th

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