Sevoian v. Ashcroft

• Decision Date: 08 May 2002
• Docket Number: No. 00-2369.,00-2369.
• Parties: Tengiz SEVOIAN, Petitioner, v. John ASHCROFT,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

290 F.3d 166

Tengiz SEVOIAN, Petitioner, v. John ASHCROFT,^* Attorney General of the United States, Respondent.

No. 00-2369.

United States Court of Appeals, Third Circuit.

Argued April 5, 2001.

Filed May 8, 2002.

Davis Polk & Wardwell, James I. Rim (Argued), New York, NY, for Petitioner.

David W. Ogden, Assistant Attorney General, Civil Division, Emily Anne Radford, Assistant Director, Papu Sandhu (Argued), Senior Litigation Counsel, Terri J. Scadron, John M. McAdams, Jr. Office of Immigration Litigation Civil Division, Department of Justice, Washington, D.C., for Respondent.

Before: SCIRICA, AMBRO, and GIBSON,^** Circuit Judges.

OPINION OF THE COURT

JOHN R. GIBSON, Circuit Judge.

Tengiz Sevoian, a citizen of the Republic of Georgia, petitions for review of the refusal of the United States Board of Immigration Appeals to reopen his removal proceeding. Sevoian originally sought asylum and withholding of deportation on the grounds that he would face religious and ethnic persecution if returned to Georgia. After a hearing, the Immigration Judge and then the Board of Immigration Appeals denied those claims. Sevoian then moved to reopen his case in order to raise a new claim: that he is entitled to withholding of removal because his deportation would violate the United Nations Convention Against Torture as adopted by the United States. The Board denied Sevoian's motion to reopen, concluding that he had failed to establish a prima facie case for relief under the Convention Against Torture and its implementing regulations. Sevoian's petition for judicial review of that decision raises a threshold question concerning the proper standard of review for a denial, on prima facie case grounds, of a motion to reopen immigration proceedings under the Convention. We conclude that we must review the Board's ultimate decision to determine whether it was arbitrary, capricious, or an abuse of discretion, and any findings of fact to determine whether they were supported by substantial evidence. Applying these standards, we deny Sevoian's petition.

Sevoian is a member of the Kurdish ethnic minority in Georgia and follows the Yezidi religion, a small Kurdish sect centered in Iraq and the Black Sea countries. See A New Dictionary of Religions 565-66 (2d ed.1995). In 1994 and 1995, Sevoian received draft notices from the Georgian Army ordering him to report for military service. He later testified to the Immigration Judge that he feared reporting for military service because Kurdish soldiers were often beaten by Georgian soldiers and forced to participate in atrocities in Georgia's ongoing ethnic civil war in the Abkhazia region. Sevoian stated that in 1995 he fled his home in Tbilisi to avoid serving in the army, hiding himself at his uncle's house in a small rural village. The Georgian authorities opened a criminal proceeding against Sevoian for evasion of military service. Sevoian remained in partial seclusion in his uncle's village until 1997, when Sevoian decided that military patrols were drawing too near to his hiding place. He then fled Georgia to avoid conscription. Sevoian's uncle bribed a Georgian official to obtain a passport, and bribed an official at the airport to get Sevoian past a military checkpoint.

Sevoian entered the United States in late September, 1997, with a nonimmigrant visa that permitted him to stay until October 31, 1997. Intending to settle in Canada, he traveled to that country and applied for refugee status, but his claims were denied. The Canadian government deported Sevoian to the United States on June 11, 1998. The Immigration and Naturalization Service then promptly commenced its own removal proceeding against Sevoian for overstaying his visa. See 8 U.S.C. § 1227(a)(1)(B) (Supp. IV 1998).

Sevoian conceded that his visa was expired, making him "removable" under § 1227(a)(1)(B). He applied for asylum in the United States on the ground that he faced religious and ethnic persecution in Georgia as a Kurd and a Yezid, and brought a second claim for mandatory withholding of removal on the same ground. Sevoian claimed to have experienced incidents of abuse and discrimination in Georgia based on his ethnic and religious background, as part of an increase in nationalist sentiment among ethnic Georgians after Georgia's independence from the former Soviet Union. He claimed that these incidents of harassment, together with the likelihood that he would be physically abused by Georgian police if he were arrested for evading the draft, added up to a well-founded fear of future persecution if he returned to Georgia. Sevoian testified at his asylum hearing and entered a number of exhibits to throw light on his claims, including the State Department Country Report on human rights conditions in Georgia and similar materials prepared by non-governmental human rights organizations.

The Immigration Judge denied Sevoian's claims for relief. She held that Sevoian had failed to meet his required burden of proof to show either past persecution or a well-founded fear of future persecution. As a threshold matter, the Judge expressed some doubts about Sevoian's credibility when testifying. She declined to enter an adverse credibility finding, but noted several gaps or inconsistencies in his testimony, and suggested that she did not find Sevoian "completely credible." Next, the Judge reasoned that the descriptions of human rights problems in Georgia found in the State Department report did not support Sevoian's claims of persecution. Rather, they showed that nationalist sentiment in Georgia had declined significantly since the early 1990s and was no longer a part of government policy. She further reasoned that the possibility that Sevoian would be punished for illegally evading the draft if he returned to Georgia did not, without more, support his claims of persecution.

The Board of Immigration Appeals affirmed, holding that Sevoian had failed to meet his evidentiary burden for establishing a well-founded fear of persecution. The Board noted that persecution for failure to serve in the military is a difficult claim to establish; it may succeed in rare cases when punishments for the crime are disproportionately severe, or when conscripts are required to engage in inhuman acts or atrocities as a necessary part of military service.

Sevoian then filed a motion requesting the Board to reopen his case to consider whether he was entitled to withholding of removal on a basis he had not asserted during his removal hearing: that deporting him to Georgia would violate the Convention Against Torture. Sevoian's motion to reopen asserted that he faced imprisonment in Georgia due to his failure to serve in the military and that Georgian police commonly used torture against suspects and prisoners. Therefore, Sevoian argued, if he returned to Georgia he was likely to be tortured in violation of the Convention.

The Board denied the motion to reopen, holding that Sevoian had failed to make out a prima facie case for relief, because insufficient evidence supported his claim that he would face torture in Georgia.¹ It concluded that the State Department report, which formed part of the record below, indicated that official torture of prisoners was used "for the most part" to extract confessions. Therefore, the Board reasoned, torture would not be used in a case involving Sevoian, who had simply avoided conscription. Hence, Sevoian had not met his burden to establish a prima facie case for relief under the Convention.

Sevoian petitioned this court for review of the Board's denial of reopening. See Khourassany v. INS, 208 F.3d 1096, 1100 (9th Cir.2000) (holding that the Board's denial of a motion to reopen is reviewable by the federal courts of appeals).

I.

A.

The Supreme Court has identified three principal grounds on which the Immigration Judge or the Board may deny a motion to reopen immigration proceedings. First, it may hold that the movant has failed to establish a prima facie case for the relief sought — the ground at issue here. Second, it may hold that the movant has failed to introduce previously unavailable, material evidence that justifies reopening, as required by regulation. See 8 C.F.R. § 3.2(c). Third, in "cases in which the ultimate grant of relief [being sought] is discretionary (asylum, suspension of deportation, and adjustment of status, but not withholding of deportation)," the Board can "leap ahead ... over the two threshold concerns (prima facie case and new evidence/reasonable explanation) and simply determine that even if they were met, the movant would not be entitled to the discretionary grant of relief." INS v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).

The preliminary question before this court is what standard of review applies to a denial of reopening on the first of the three grounds just listed — failure to make a prima facie case for relief. The Supreme Court has held that denials on the second and third grounds above must be reviewed for abuse of discretion. Id. But it has avoided deciding what standard courts should apply to denials based on failure to make a prima facie case. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Abudu, 485 U.S. at 100-04 & nn. 6-9, 108 S.Ct. 904.²

Several circuits have applied abuse of discretion review to denials of reopening for failure to establish a prima facie case. See Mansour v. INS, 230 F.3d 902, 906-07 (7th Cir.2000); M.A. v. INS, 899 F.2d 304 (4th Cir.1990) (en banc); Bahramnia v. INS, 782 F.2d 1243 (5th Cir.1986). Two other circuits have recently reviewed such decisions for both substantial evidence and an abuse of discretion, in cases involving the prima facie case requirement for reopening under the Convention Against Torture. In Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir.2001), the Eleventh Circuit held that the Board of Immigration Appeals' denial on prima facie case grounds of a motion for reopening...